Professional Documents
Culture Documents
Commercial Standard Ins. Co. v. McCollum, 207 F.2d 768, 10th Cir. (1953)
Commercial Standard Ins. Co. v. McCollum, 207 F.2d 768, 10th Cir. (1953)
2d 768
Carl H. Gilbert, Santa Fe, N.M. (L. C. White and William W. Gilbert,
Santa Fe, N.M., on the brief), for appellant.
H. S. Glascock, Gallup, N.M. (H. C. Denny, Gallup, N.M., on the brief),
for appellee.
Before BRATTON, HUXMAN and PICKETT, Circuit Judges.
HUXMAN, Circuit Judge.
contemplated a cash sale and that title was not to pass until the check given in
payment had been paid and, since it had not been paid at the time of the
accident, McCollum was the owner of the car.1 Judgment was entered for
McCollum based on these findings. The correctness of the court's judgment
depends upon the sufficiency of the evidence to sustain the above outlined
findings.
2
McCollum, the owner of the automobile in question, had decided to sell it. He
placed it with the Pontiac-Cadillac Agency in Gallup, New Mexico, for that
purpose. Frank Wiseman of Inglewood, California, came to Gallup and
negotiated with appellee for the purchase of the car. They agreed upon a
consideration of $4,600 for the car. Wiseman gave his check for this amount
and the car was delivered to him and he started on his way to California.
As pointed out, the protection afforded by the policy did not apply if the
automobile was subject to bailment lease, conditional sale, mortgage or other
encumbrance. As stated, appellant defended on the ground that McCollum had
sold the automobile or in any event that the contract with Wiseman constituted
a conditional sale or created a bailment and that therefore, there was no
liability. The trial court rejected these contentions. It found that both parties
contemplated a cash sale; that neither intended a sale on credit and neither
intended a conditional sale and that neither Wiseman nor McCollum intended
that the title to the car should pass until McCollum actually received payment.
All the direct evidence in the case supports these findings.2 Appellant, however,
contends that the surrounding facts and circumstances refute these findings and
compel the conclusion that there was a sale on credit or in any event a
conditional sale, in which title was retained as security for payment of the
amount due. It points to the fact that McCollum gave Wiseman a bill of sale for
the car and also delivered the certificate of title to him. But McCollum testified
that these instruments were given to Wiseman only to enable him to pass
through the California Port of Entry and not for the purpose of passing title. It
is significant that the certificate of title was not endorsed but that it was
understood, when McCollum was paid, Wiseman would return the certificate to
McCollum for his endorsement and it would then be redelivered to Wiseman.
The facts as found by the trial court, supported as we think they are in the
record, distinguish this case from Allison v. Niehaus, 44 N.M. 342, 102 P.2d
659, on which appellant relies. That case is predicated on the premise that title
was retained as security for the payment of the purchase price. This was not the
case here under the court's findings. Appellant cites a series of cases such as
Garuba v. Yorkshire Ins. Co., 233 Iowa 579, 9 N.W.2d 817, and Hicksbaugh
Lumber Co. v. Fidelity and Casualty Company of New York, Tex. Civ. App.,
177 S.W.2d 802, in support of its position. They are, however, distinguishable
upon the facts. In all of them were present elements showing the existence of an
equitable interest in the vendee or a debtor-creditor relationship and the
retention of title as security for a debt, or other factors sustaining a finding that
the vendor was no longer the sole and unincumbered owner of the property,
free of all claims by others.
6
A cash sale is one where title passes only upon payment of the purchase price.
Payment in such sales is a condition to the passing of title and, when in such
sale the vendor accepts a check or draft for the purchase price as a means of
payment, and as between the parties payment becomes absolute only when the
check or draft is paid3 and, until such payment, title does not pass.
Whether a contract is one of sale or one to sell and whether it is a sale for cash
or on credit depends upon the intention of the parties4 and in determining
whether title passes by the giving of a check in a sales transaction the guiding
factor is the intention of the parties.5 In determining the intent of the parties, we
look not only to what they said but also to what they did with respect to the
transaction.
Standing alone and unexplained the delivery of the car to Wiseman, knowing
that he would take it to California with him, would be a factor tending to
support a contention that this was a credit transaction and not a cash sale, but it
does not stand unexplained in this record and the nature of such delivery clearly
appears therein.
The conditional delivery of the bill of sale and of the certificate of title are
significant as is the fact that McCollum was shortly coming to Los Angeles. He
testified that Wiseman stated if he was unable to handle the car he would meet
McCollum at the Los Angeles Airport on arrival and redeliver the car to him.
All this supports the legal conclusion that the delivery of the car to Wiseman
was a conditional delivery, without vesting any equitable interest or ownership
in him and entitling him only to the possession of the car until paid for or until
called upon to redeliver it to McCollum.6
10
What has been said disposes of the contention with respect to bailment or
mortgage encumbrance. It is our conclusion that the findings of the trial court
are supported by the record and the judgment appealed from is, therefore,
affirmed.
Wiseman, the purchaser, was killed in the accident and payment on his check
was stopped
Since Wiseman was killed in the accident, McCollum offered the only direct
testimony as to the terms of the contract